Where a statute empowers justices to hear and determine an offence m a sum mary way, it is implied that the party be first cited to appear, so that he may have an opportunity of being heard, and of answering for himself; and to proceed against an offender without causing him to be summoned is a misdemeanor. A statute authorizing justices to require any person to take the oath of allegiance, or to do some other specific act, im pliedly gives them power to issue their precept requiring the attendance of the party.
Upon the hearing of informations and in other preliminary proceedings before justices out of sessions, neither the pri soner on the one hand, nor the prosecutor on the other, can claim as of right, and against the will of the justices, to have a legal adviser present, except, it would seem, in cases in which the deposition may by some statutory provisions be made evidence against the accused upon his trial for the offence in the event of the death of the witness. In practice, however, both counsel and attorneys are generally admitted as a matter of cour tesy to advise and protect the interest of prisoners. Every person has a right to be present before a justice, acting in his judicial capacity. But although in such a case counsel or attorneys, or any third persons, are at liberty to attend, they could not formerly claim to be heard on behalf of their clients; the justices might refuse to hear them, or to allow them to interfere with the proceedings. But now, by 6 & 7 Wm. IV. c. 114, in all cases of summary conviction, persons accused are to be admitted to make their full answer and defence, and to have all witnesses examined and cross-examined by counsel or attorney. In all cases where justices are directed to take examinations or evidence, it will be implied that the examination or evidence is to be taken under the sanction of an oath or solemn affirmation.
Statutes frequently empower justices to award damages to an injured party, as in cases of assault, or malicious injuries to property.
Where a complaint is made before a justice, and a summons or warrant issues, the justice upon hearing and determining the matter may award costs to either party, and enforce the payment of such costs.
Justices ought not to exercise their functions in cases in which they are themselves the persons injured. They
should cause the offenders to be taken before other justices, or, if present, should desire their aid. In all cases which a justice may hear and determine out of sessions upon his own view, or upon the confession of the party, or upon oath of witnesses, he ought to make a record on parchment under his hand of all the pro ceeding and proofs, which record should in the case of summary convictions be returned to the next sessions and there filed.
By 27 Geo. II. c. 20, in all cases where a justice is required to issue a warrant for the levying of any penalty inflicted, or any sum of money directed to be paid, by any statute, the justice granting the warrant is empowered therein to order and direct the Foods distrained to be sold within a certain time, to be limited in such case (so as such time be not less than four days, or more than eight days), unless such penalty, or sum of money, with reasonable charges of taking, keep in*, and selling the distress, be sooner paid.
When justices refuse to hear a com plaint over which they have jurisdiction, or to perform any other duty which the law imposes on them, the party aggrieved such refusal may apply to the Court of King's Bench for a writ of mandamus, a process by which the king requires the party to whom it is addressed to do the thing required or to show cause why it is not done. If no sufficient excuse be re turned, a peremptory mandamus issues, by which the party is commanded abso lutely to do the thing required. But as justices have no indemnity in respect of their acts because done in obedience to a mandamus, this process is not granted where there is anything like a reasonable doubt of the justice's authority to do the required act.
Justices of the peace are strongly pro tected by the law in the execution of their office. Opprobrious words which would not subject the speaker to any proceeding, civil or criminal, if uttered under other circumstances, yet if spoken of a justice whilst actually engaged in his official duties, may be made the subject of an action or of an indictment ; or if spoken in the presence of the justice, may be punished by commitment to prison, as for a contempt of court ; this commitment however must be by a written warrant.